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Providing Full and Fair Legal Services to the New Transnational Migrant Workers in the U.S. -- Bill Beardall

Providing Full and Fair Legal Services
to the New Transnational Migrant Workers in the U.S.:

A Review of Best Practices and

A New Paradigm for the 21st Century

A memorandum to assist the U.S. Department of State

to Fulfill its Commitment to Implement

the 1998 Santiago Summit of the Americas

Declaration on the Rights of Migrant Workers

by Bill Beardall

Legal Director for Texas Appleseed and

Special Counsel to Texas Rural Legal Aid Migrant Division

The Increasing Significance of Transnational Migrant Workers in the U.S. Low Wage Workplace
Why Migrant Employment Protections and Legal Assistance Are More Important Than Ever
The Existing Model of Migrant Legal Assistance
Some Specific Best Practices Learned from the Existing Model of Migrant Legal Services
Adapting These Best Practices to the New Realities of the Evolving Migrant Labor Market

The Plan of Action signed by Western Hemisphere governments at the 1998 Santiago Summit of the Americas, among other things, committed them

"to guarantee the human rights of all migrants, including migrant workers and their families;"... "to adopt effective measures, including strengthening of public awareness,.to prevent and eradicate violations of human rights;" and
to "protect the rights of all migrant workers and their families, consistent with each countries internal legal framework, by taking steps, in case they do not exist, to:
• provide, with respect to working conditions, the same legal protection as for national workers,"
• "protect all migrant workers and their families, through law enforcement and information campaigns from becoming victims of exploitation," and

• "prevent abuse and mistreatment of all migrant workers by employers."

One of the "best practices" which warrants special attention as a mechanism for carrying out these obligations, is the U.S. system for providing legal assistance to migrant workers who are seeking a remedy for employment problems. There are two main reasons to focus special scrutiny on the legal assistance provided to migrant workers in the U.S.: (1) The increasingly transnational character of the U.S. migrant workforce and employers’ increasing reliance on those transnational workers, requires a reassessment of our old scheme of migrant legal assistance as well as in our old scheme of migrant employment rights; and (2) Access to legal assistance, now more than ever, is crucial to the realization of equal employment rights and economic well-being for migrant workers who labor in the U.S. The discussion below elaborates on these two ideas and then explores the particularized "best practices" found in our existing model of legal assistance for migrant workers. This paper concludes with some suggestions about how the existing model must be adapted if it is to continue to embody best practices which respond to evolving changes in migrant labor in the U.S.

The Increasing Significance of Transnational Migrant Workers in the U.S. Low Wage Workplace

I and my colleagues in Texas have spent nearly a quarter century providing legal representation to migrant workers in the U.S. with the goal of empowering migrants workers to protect their basic employment rights and challenge the long history of exploitation to which migrants in the U.S. have been subjected. In 1978, fresh out of law school, I went to work with the then new Migrant Worker Division at Texas Rural Legal Aid. The largest part of our clientele has traditionally been workers who live in the Texas-Mexico border region - on both sides of the border - and who travel to almost every area of the country to work. Because our migrant clients migrate throughout the U.S. to find work opportunities, we regularly work with our clients on cases which arise from labor in almost every state in the U.S. and we collaborate with migrant legal rights advocates throughout the country. From the 1960's through the early1990's, these migrants who live in the border region typified the migrant worker in the U.S. They are mostly Mexican born non-citizens, though most enjoy lawful permanent resident immigration status. In addition to men, they include a substantial number of women and children and they often work in family groups. Traditionally they have labored mainly in agriculture.

Although there is a significant sense in which these traditional migrant workers have always represented a transnational culture and workforce, a new and much more explicitly transnational migrant work force has begun to participate in and shape the U.S. low wage labor economy. These new transnational migrant workers are now much more likely to move back and forth across international boundaries - especially the U.S.-Mexico border between a permanent home in Mexico and work opportunities in the U.S. The new migrants are more likely than in the past to be younger, to be male, and to be separated from their families for long periods while working in the U.S. Their labor is no longer limited to agriculture but is tapped by low wage employers in a wide variety of industries, especially in rural regions and smaller cities. In many regions of the U.S., such as the Southeast, these transnational migrants are becoming the preferred low wage workers. Indeed many low wage industries (for example, poultry and meat processing) are changing their employment practices and structure to take advantage of these new transnational migrants. They are much less likely than traditional migrants to know about their employment rights in the U.S. or to be able to use the U.S. legal system to protect their employment rights. Against the general backdrop of an increasingly transnational economy, these workers represent an emerging new paradigm - namely, an increasingly transnational low wage work force which is beginning to change fundamentally not only the nature of migrant labor in the U.S., but also the nature of low wage labor generally in the U.S., as well as the prevailing employment practices in low wage workplaces, the status of the non-immigrant working poor, the overall face of poverty in the U.S. and the effectiveness of our national scheme of low wage employment protections.

Why Migrant Employment Protections and Legal Assistance Are More Important Than Ever

Low wage employment protections are especially crucial for non-citizen migrant workers in the U.S. Our system of basic employment rights, and our legal system for enforcing those rights, are among the most important avenues through which immigrants and non-citizens gain entry into the mainstream of U.S. society. Four aspects of this bear special emphasis. First, the area of employment rights is one of the few places where we aspire to guarantee non-citizens that they will be given full equality with citizens of the U.S. We don’t give non-citizens equal political rights. We don’t give them equal access to most social services. But we do generally guarantee equal employment rights and equal treatment in the system of justice - even to workers whose presence in the U.S. is completely unauthorized. Second, employment and the wages and benefits a person earns for her labor are the primary means of establishing economic self-sufficiency, social stability and personal dignity in U.S. society, especially for non-citizens and migrant workers, whose access to other means of support (such as social benefits) is limited. Third for all workers in the U.S., employment fairness is not just a function of the substantive legal rights they have on the books. Rather the key to justice in the workplace is more often whether or not they have any real ability to enforce those employment rights. Fourth, for all workers in the U.S. enforcing one’s legal rights usually requires getting assistance from a professional advocate. This makes legal assistance for transnational migrant workers a crucial necessity, because without it, the promise of equal employment rights is hollow, even where significant rights may exist in the statute books. Indeed robust legal assistance is more vital than ever, because of the new transnational migrants’ relative lack of familiarity with U.S. employment law and enforcement mechanisms.

The Existing Model of Migrant Legal Assistance

The continuing need for effective legal assistance for migrant workers, makes it important to understand the current model of migrant legal assistance, as a precedent to evaluating what has worked best in the past and what is likely to work well in the future.

It is useful to start by pointing out the primary mechanisms we currently have in the United States for workers to enforce their employment rights and to ask whether these mechanisms work for migrant workers. For the last thirty years or so, most working people in the United States have had four main mechanisms they could potentially utilize to enforce their employment rights: (1) Federal and state departments of labor; (2) labor unions; (3) private employment lawyers; (4) publicly funded legal aid programs. Unfortunately these mechanisms have been largely inaccessible to most migrant workers:

Government agencies’ efforts have been limited by chronic under-funding and under-staffing and by the political reality that in our system they have to respond to political power - something which migrant workers lack and migrant employers have in abundance.
Labor unions and worker organizations are generally only able to help the 10-15% of U.S. workers who have a union or similar organization. And, of course, the percentage of migrant workers who have access to union representation is much smaller still at this moment in history.
Private employment lawyers normally make their living by handling employment cases on a contingent fee basis. The typical migrant case seems unattractive to them because migrants’ low wages, short work periods, and low earnings capacity make for low recoveries. In addition barriers arising from language, culture, geographic isolation and distance and international boundaries make it difficult for most private attorneys to represent migrant workers with the resources they normally have.
Although government-funded legal aid programs are able to represent low-income people without regard to fees or profit, most legal aid programs in the U.S. have little experience with employment law, don’t speak the language of migrant workers, are located in cities and don’t have the outreach capability which could make legal aid accessible to migrant workers.
There is one enforcement mechanism, however, which, at certain times, has worked reasonably well to enforce the employment rights of migrants. In the late 1970's the U.S. Legal Services Corporation (LSC) began to provide funding for a specialized subset of legal aid programs, which have come to be known as "migrant legal services" programs. These migrant legal services programs are designed to operate as a network of law offices which specialize in the problems of migrant workers, especially employment matters.
It was just such a migrant legal services program that I went to work with at Texas Rural Legal Aid, when I graduated from law school. The typical problems on which TRLA represents its migrant clients include things like:

Not getting paid the minimum wage or not getting paid at all.
Not getting paid the full wages they were promised when their employers recruited them.
Other breach of contract claim arising from deceptive recruitment practices where workers are promised one false set of work terms at the time they are recruited and then find actual work terms much worse once they have traveled all the way to the work site.
Being housed in labor camps which are illegally dilapidated, unsafe and unhealthy.
Dangerous working conditions and job injuries, including pesticide poisoning and injuries caused by farm equipment.
Other migrant legal services programs around the U.S. have also provided this same kind of representation, often collaborating in a loosely coordinated network..

Some Specific Best Practices Learned from the Existing Model of Migrant Legal Services

Migrant legal services has never come close to having enough funding and staff to fully meet the legal assistance needs of migrants. Nevertheless, up through the mid-1990's, at least, migrants workers represented by migrant legal services programs were able to exert enough enforcement pressure to have a positive impact on the wages, working conditions and employment practices affecting migrants in many workplaces and in many parts of the U.S. From those instances and places where migrant legal services programs have been most successful, several specific "best practices" can be singled out. In fact these are many of the techniques which I and my colleagues used over the last twenty years to build TRLA into one of the country’s most successful migrant legal services programs.:

1) The successful programs specialize in migrant employment law, enabling them to develop exceptional legal expertise and a common sense of mission.

2) sense of mission to successive generations of migrant lawyers and paralegals, notwithstanding a relatively high rate of turnover among the attorney staff..
3) Migrant legal services programs have been most successful when they have had the ability to represent all migrant workers, regardless of their immigration status and including undocumented workers and foreign guest workers.

4) The network of migrant legal services programs has been most effective when it has been able to reach migrant workers after they have returned to their home base communities in places like Florida, Texas, California and Mexico. Experience has consistently shown that migrant workers are much more willing to consider their legal rights, and much comfortable enforcing their rights, when they have access to legal assistance in their home base community - that is, after the work is completed and after they have left the work site where they tend to be isolated, vulnerable and highly dependent on the employer. It has therefore been crucial to have migrant legal services offices and outreach in the workers’ home base communities.

5) Wherever the migrant legal services program is located, outreach is crucial. Migrants are often isolated, dependent on employers, unfamiliar with their rights and unfamiliar with the local social and legal infrastructure. Migrant clients do not tend to come into social service offices, aren’t usually available during regular business hours and don’t relate to an office appointment culture. Successful migrant legal services programs reach out to workers, conducting most of their client contacts outside the office, during off-hours and at unofficial locations. Paralegal community workers who know the migrant worker community from experience have generally proven to been the most effective outreach organizers.

6) Collaboration with community-based, non-governmental organizations has been an effective technique for outreach, rights education, and building workers’ skill and confidence in using the legal system. Representation of groups of workers often helps them overcome fear and unfamiliarity with the legal process through mutual support. Direct legal assistance to migrant worker organizations, where they exist, can empower workers’ efforts to organize and advocate for themselves, so long as the legal advocates confine themselves to a legal support role, with the client appropriately in charge of the attorney-client relationship.

7) Even though migrant legal services programs have not been entirely insulated from political pressure (as events in recent years have demonstrated), they have not been nearly as compromised politically as government agencies would be in carrying out the same mission to faithfully represent the interests of migrant workers. This is largely because (a) migrant legal services programs are structured as independent, private non-profit corporations and (b) they are operated as law firms, which means they have an obligation, grounded in professional ethics, to represent only the interest of their client and to not allow themselves to be influenced by outside political pressures.

8) Another factor which has made for successful migrant legal services programs is the ability to handle a case which might require an investment of time and resources greater than the eventual recovery by the particular plaintiffs they are representing. This enables them to enforce rights and to change illegal employment practices which affect a much larger number of workers in that workplace or region, even where most individual workers at that site feel too vulnerable to assert their rights in any visible way or even where no individual worker, by herself, has lost more than a modest amount of her earnings.

9) Many migrant legal services programs have had excellent success using mediation and other alternative dispute resolution mechanisms to obtain a remedy for their migrant clients and to modify illegal employment practices for the future. It is not the only kind of legal assistance migrant workers need, but in appropriate cases, it can be a powerful and cost-effective way to resolve employment conflicts and bring about lasting change.

10) The most successful migrant legal services programs have developed a model for co-counseling with private employment lawyers. What makes such co-counseling relationships successful is that the legal services program can supply the expertise in those aspects of migrant law and representation techniques which the private counsel lacks, while the private attorney provides his own additional resources and expertise to the case to supplement what the legal services program does not otherwise have.

11) Another key to success has been the ability to collect attorneys fees from the losing defendant when the migrant legal services program has prevailed on a case. This helps to replenish the resources which had to be expended enforcing the law and it encourages the prompt resolution of legal disputes.

12) When migrant legal services programs are able to bring migrant workers’ claims as class actions, they are far more cost-efficient and effective at enforcing migrant workers’ rights. Often this doesn’t mean a class action seeking a huge sum in damages; a class action seeking only injunctive relief designed to bring an employer’s practices into compliance with the law, has often proven to be a low-cost, but effective, method for achieving long term benefits for a whole group of migrant clients.

Adapting These Best Practices to the New Realities of the Evolving Migrant Labor Market
Of course, it is widely known that during the second half of the 1990's, the success and vigor of the migrant legal services network has been greatly eroded. Why is this? It is precisely because many of the successful practices cited above have been weakened or eliminated. Even worse these restrictions and cutbacks have been implemented at a time when changes in the pattern and make-up of migrant labor in the U.S. were making these successful migrant legal services practices more critical than ever. Perhaps most harmful among the restrictions and cutbacks have been the following: (a) elimination of the ability to represent undocumented workers and H-2B guest workers; (b) limits on the ability to conduct outreach and education with migrant workers in their home communities in Mexico, even as Mexico becomes the principal migrant home base; (c) funding cuts which have reduced many programs to a size so small they cannot sustain a long term expertise and sense of mission, in the face of high staff turnover; and (d) erosion of the professional commitment to vigorous representation of migrants, out of fear of political controversy leading to further funding cuts.

As we look to the future, it seems that there is a clear need for governments and NGO’s to rebuild a new legal services infrastructure which will give migrant workers who labor in the U.S. full access to the U.S. legal system and will give them the same power that other workers in the U.S. have to protect their own employment rights. In building this new infrastructure we should keep in mind the lessons learned from our late 20th century experiment with migrant legal services programs:

1) Any new legal services scheme for migrant workers needs to be transnational, or at least bi-national, in nature. Our old legal services system has been a nationally based scheme built around the old assumption that everyone who needs legal assistance to protect their rights is a U.S. resident. We can no longer ignore the obvious fact that Mexico is now the primary home base for migrant workers in the U.S. We need legal assistance services which transnational migrant workers can access even when they move back and forth across the border, including when they are in their home base communities.
2) We will need to develop new funding sources to support this new system of legal services. It is important to retain and strengthen the existing migrant legal services funded by the U.S. Legal Services Corporation (LSC), but it is not politically realistic at this time to think it will adopt a transnational focus. It is more realistic to think that NGO’s will have to be the pioneers in this effort, using private funding or other non-federal funding.

3) Any official immigrant labor programs, including new and current guest worker programs, have to ensure migrant workers have full and equal access to the U.S. system of justice, including access to the legal assistance they need to use the U.S. justice system. This is a fundamental test of the fairness of any transnational labor program and, I believe, a test of whether that program complies with the NAFTA labor side agreement.

4) U.S. migrant labor laws need to be modified so that they are better adapted to protecting the rights of transnational migrant workers. Our current low wage labor protection scheme in the U.S. was designed for a national, not a transnational workforce. Its usability falls off dramatically when a worker crosses the border to go back home to Mexico after the job ends, or the worker is terminated or injured. Migrant workers from Mexico or elsewhere should not be at a legal disadvantage, just because they come from a home base beyond the U.S. borders.

5) By far the largest untapped source of legal assistance for migrant workers in the U.S. is our system of private attorneys. After all, when an average working person residing in the U.S. has a problem with employment discrimination, a job injury or substantial wage and contract violations, the place they typically turn for help is to a private attorney. Private attorneys won’t take every case, especially those involving relatively little money, but there is a great deal we can do to make the private bar resource much more accessible to migrant workers than it is now, including greater collaboration and co-counseling between non-profit migrant legal advocates and private attorneys.

6) We need to bear in mind the best practices learned from our first, 20th century experiment with migrant worker access to the U.S. legal system, as we go on to develop a new model more appropriate to the modern 21st century transnational migrant labor reality.

A number of very experienced experts have started concrete discussions about how to devise a new system of legal assistance for transnational migrants. Other advocates are urged to join in this discussion. Likewise the governments of both the U.S. and migrant sending countries should make a commitment at the official level to address this fundamental issue of employment justice and begin to develop the mechanisms for transnational migrant employment protection.